By Dan Miller
Vice President, West Virginia Mining & Reclamation Association
Charleston, WV
The Surface Mining Control and
Reclamation Act, passed by Congress in 1977, carries a "citizen's
suit" provision. This was a
conscious effort to allow ordinary citizens access to the complexities of the
federal legal system. That is, if a
citizen is moved to take action because of the perceived inaction of a
regulatory agency, then he or she is not blocked by a lack of legal resources.
To achieve this end, the law
provides that, if the plaintiff prevails, the attorneys' fees thereby incurred
will be paid by the defendants, most likely a government agency.
Like many well-intentioned laws, this provision has been perverted by
lawyers.
By the standards of a private
citizen, the government is a bottomless pit of money.
Coupled with the natural tendency of government agencies toward
self-protection and self-preservation, the resulting legal situation is hog
heaven for lawyers.
The regulators are easy pickings
for "public interest lawyers" who file suit, then settle out-of-court.
The agencies are motivated to settle as the path of least resistance, the
settlement always provides for attorneys' fees and the cost is always borne by
the taxpayers. Meanwhile, the
aggrieved citizen gets absolutely nothing and the plaintiff lawyers get rich.
The defense lawyers don't do badly either, drawing their fees from the
same fat taxpayer purse.
This practice began in the
1970's, but was perfected a decade ago by then-Washington lawyer Tom Galloway,
who filed suit against the Commonwealth of Kentucky and settled out-of-court for
a little over $180,000. He then crossed the Tug River into West Virginia where, armed
with virtual photocopies of his Kentucky briefs, he filed suit again and
proceeded to take home another six-figure settlement, all without benefit of a
single court decision. Of course,
that was 1980's money, peanuts compared to the going rate for citizen suits in
the 21st century.
All of which brings us to the
federal court case styled "Bragg v. Robertson," which has little to do
with either plaintiff Patricia Bragg or Corps of Engineers Chief Dana Robertson.
What it's all about this time is 1) the legalistic effort by
environmental groups to cripple the coal mining industry in West Virginia and 2)
another big payday for lawyers at taxpayer expense.
The enviros will deny that they
want to halt coal mining statewide. They
say it's all about mountaintop mining and obeying the law.
Meanwhile, there are at least two more lawsuits waiting in the wings, one
attacking longwall mining and another dealing with water quality issues. If these are resolved, there will be more to replace them.
We have never been without litigation since the citizens' lawsuit
provision was enacted.
Riding the crest of anti-mining
publicity generated by the mountaintop mining issue, the Highlands Conservancy
of West Virginia rustled up some clients three years ago to sue the State
Division of Environmental Protection and the federal Corps of Engineers for lax
and/or non-enforcement of the Clean Water Act and SMCRA.
They hired Mountain State
Justice, which assigned the case to Joe Lovett, a young but talented lawyer with
little experience. Lovett, in turn,
assembled a team of lawyers to help with the case.
These included WVU law professor and long time mining opponent Pat
McGinley and Washington DC federal rip off specialist Jim Hecker. McGinley
also brought in his wife, attorney Susan Weise.
As a beginning attorney, Lovett
bills at "only" $150 an hour. With
considerably more experience, McGinley goes for $225 per hour.
Weise opts for the more modest $150 rate, but Hecker, as a DC
practitioner, commands an impressive $350.
That means every conference among these four would eventually set the
taxpayers back a whopping $875 per hour, or $7000 per working day.
And lawyers don't move quickly. Current
bills from the foursome cover a period of nearly two and a half years.
In all, the foursome submitted
bills totaling $644,924.68. And
that's just the part for DEP. And
that's with discounts.
Under the Revised Consent Decree,
part of the out-of-court settlement, DEP agreed to pay 75% of plaintiff's
attorneys' fees and costs through July 26, 1999.
The agency also obligated itself for plaintiffs' fees and costs for
post-Decree implementation.
On that basis, Lovett billed for
1,743.5 hours for himself at $150 per hour, as well as 131.5 hours for law
student Leah Smith at $50 per hour. This
amounted to $261,525 for Lovett and $6,575 for Smith.
The team of McGinley and Weise
submitted a separate bill. McGinley, who earns $95,975 as a "full time"
professor of law at West Virginia University, nevertheless found 593.17 hours to
spend on the case. Billed at $225
per hour and discounted at 75% as per the consent decree, McGinley's bill ran to
$100,097.43. Weise billed for
379.54 hours, or $42,698.25.
Hecker, who operates out of a
firm ironically called Trial Lawyers for Public Justice, P.C., submitted 10
pages of justification, including his resume, for his hourly rate of $350.
Hecker clearly stated that his role was "primarily to provide strategic
advice and research and briefing skills."
For this he billed DEP for 637.44 hours, or $213,542.40.
He also threw in 10.13 hours for assistant Mark Wenzler to the tune of
$2,431.20.
There were, of course, more costs
than just the four, five or six attorneys.
At one point, plaintiff James Weekley was conflicted with lead attorney
Lovett. No problem.
Mountain State Justice brought in Charleston environmental lawyers John
Barrett and David Grubb to alleviate Weekley's concerns.
Cost to the taxpayers, just $6,127. Mountain State Justice listed total expenses, over and
above time expended, at $7,603.89. The McGinley/Weise bill included $2287.56 for
Charleston anti-mining activist Bob Gates, for services related to video taping.
Trial Lawyers for Public Justice
is where the action is, expense wise. TLPJ submitted expenses totaling
$111,314.40. Most of that went to
self-proclaimed expert John Morgan, who lacks official engineering credentials.
Lawyers sometimes try to justify
their rates by claiming that they get nothing if they do not prevail.
Inevitably, the government settles out-of-court and the settlement
agreement always provides for plaintiffs' attorney fees.
Expert witnesses like John Morgan, however, don't usually operate like
that. They're accustomed to getting
theirs no matter who wins. That may
be why, when Morgan was retained by the plaintiffs' table full of counsel, he
offered a 40% discount from his usual $125 per hour fee.
However, when the plaintiffs prevailed, the discount offer seems to have
disappeared and the taxpayers are stuck with the full expert Morgan rate.
Morgan has billed for over $87,000.
The majority of people, who lack
the opportunity to send out you-owe-me's that cover every minute of their
working day, find it difficult to comprehend the justification for the lawyer
billing system. Here few cases in
point from the Joe Lovett bill, though he is by no means unique in this regard.
Lovett's bill runs from September
8, 1997 through March 13, 2000 and is 50 pages long.
The time accounted for represents over 10 months of 40-hour workweeks in
30-month period.
Item - He spent 58.5 hours on the intent to sue.
That's over $6500 to notify the agencies that he intended to sue them.
Item - He consistently billed for travel time to meet with his
clients. Interestingly, if they
traveled to meet him, that's on them and thus free to taxpayers.
Item - He spent 8.5 hours, $562.50 worth of time, organizing his
files.
Item - His brief on the buffer zone issue cost $13,668.75.
Item - His court time was 3 hours and 30 minutes, a bargain at
$393.75.
Item - He did $5,325
worth of document drafting in just 314 hours.
Item - Research and review took 426 hours and cost $47,934.37
Item - Eight hours, a full work day billed at $900.00, for various
aspects of the conflict of interest concern regarding Lovett's representation of
plaintiff James Weekley.
Item - Lawyers do not prepare their bills for free.
Lovett claims 17.5 hours on the task and bills taxpayers for $1968.75.
The bill
also includes several items that the layman would find curious (as in, "Why
should I pay for this?).
Item
- A 30 minute telephone call with Penny Loeb, author of the original
mountaintop story in U.S. News & World Report.
Item
- A 1 hour meeting with former DEP environmental advocate Wendy Ratcliff.
Item
- One hour spent reading press accounts of mountaintop mining, and another
hour and a half to organize same for associate counsel Jim Hecker.
Item
- A six-hour trip to Logan to see mountaintop mining.
Four more hours the next day for the same thing. Seven hours more on the
DEP tour for the same thing again.
Item
- A 90 minute meeting with Peter Gray of U.S. News & World Report.
Item
- A self-described 30-minute attempt to reach DEP about issuance of a permit.
Item
- Five and a half hours to visit a mining site with Judge Charles Haden.
Item
- A one hour meeting with anti-mining WV Secretary of State Ken Hechler.
Item
- A total of 15 hours spent dealing with the State Legislature, much of
which is necessarily spent doing nothing.
Item
- Travel time to drive to Virginia, to Morgantown, to Logan County and to
Washington DC for meetings.
In addition
to travel time, he spent 45 and a half hours meeting with his clients, another
30 hours and 45 minutes with them on the phone.
The bill for that is $8,578.12. He
also spent 32 hours and 10 minutes on the phone and in meetings with various
experts for $3,618.75. He billed
$22,050 for taking calls and meetings with co-counsel for 196 hours.
Most
painful of all is the 285 hours and 45 minutes spent in calls and meetings with
opposing counsel. That cost $32,146.87 for Lovett's time and a corresponding
amount for the hours by defense counsel.
Fees and
expenses together, the cost to West Virginia taxpayers for citizens to be
represented in Bragg v. Robertson is more the $750,000, so far.
That's not counting the $475,000 or so for Charleston attorneys Ben
Bailey and Brian Glasser to represent DEP.
Meanwhile
two more anti-mining court cases are on the horizon.
One of them, attacking longwall mining will feature Attorney Joe Lovett
for the plaintiffs. His co-counsel? Ben Bailey and Brian Glasser.
Ain't life
grand?